1981 PLP (C (PLC(CS))

NASIM HASAN SHAH, J.‑This appeal by special leave is directed against the order of the Services Tribunal, Islamabad dated 9‑7‑1975 in Appeal No. 163(R) of 1975. The facts are not in dispute and the only question is whether the Services Tribunal erred in law is not condoning the delay in the preferment of. appeal before it and was right in dismissing it on the ground of limitation. The question arises in the following way:‑ The appellant was a Sub‑Postmaster at Bolani, Tehsil Kharian, District Gujrat, when he was dismissed on 25‑4‑1972 from service by the Superinten dent of Post Offices, Gujrat. He filed an appeal against the said order before the Postmaster General which was dismissed by the Appellate Authority on 17‑10‑1972. He, thereafter, filed a suit in the Court of the Senior Civil Judge, Gujrat on 15‑12‑1972. While the suit was still pending, the Services Tribunals Act 1973 (Act LXX of 1973), was promulgated and section 6 (as amended by Act XXX of 1974), reads as follows: "Section

6. All suits, appeals or applications regarding any matter within the jurisdiction of a Tribunal pending in any Court immediately before the commencement of this Act shall abate forthwith: Provided that any party to such a suit appeal or application may within ninety days of the establishment of the appropriate Tribunal, prefer an appeal to it in respect of any such matter which is in issue in such suit appeal or an Dilation." It is common ground that in view of the above provision of law the appellant could have preferred an appeal before the Services Tribunal by 22‑5‑1974. It appears that as no such appeal was filed by him, a formal application was moved by the respondent that the suit had abated on account of the establishment of the Services Tribunal and the jurisdiction of the civil Courts was barred. This application was contested by the appellant on the ground that the civil Court had still the jurisdiction to decide the matter and he prayed that the application be dismissed. The learned Senior Civil Judge, however, by the order dated 5‑3‑1974 held that after establishment of the Services Tribunal, the suit stood abated and that the appeal in the present case lay to the Services Tribunal. This order was passed on 5‑3‑1975. The appellant, thereafter, on 4‑6‑1974 (within 90 days of the order of dismissal of suit) filed an appeal before the Services Tribunal and also period for condonation of delay on the ground that there had been some misunderstand ing of the time limit. The Services Tribunal, however, dismissed the appeal in limine on 9‑7‑1975 observing as under:‑ "It is evident from the Court's order that the petitioner/appellant insisted on pursuing the matter in the civil Court and contested the application even full knowledge of the fact that it was not a Court of competent jurisdiction and that the suit had abated by the operation of law already. The appeal being barred by limitation and the plea of condonation of delay not being based on valid or sound reasons, it cannot be entertained." Hence this appeal. Leave to appeal was granted to consider the contention that "time was taken in the civil Court to argue the point whether his (appellant) suit had abated or not in accordance with the provision of section 6 of the Act, that this was done on the advice of the petitioner's counsel, for which the Petitioner should not have been penalised." In support of this contention, reliance was placed on Nazar Muhammad v. Mst. Shahzada Begum (PLD1974SC22), wherein, in the circumstances of that case, it was that the mistaken advice tendered by counsel could be considered a sufficient ground for condonation of delay. We have, therefore, carefully examined the application for condonation of delay that was filed before the Services Tribunal. We note that this application has been submitted by the appellant himself and there is no averment that the mistake in not filing the appeal in time had occurred on account of the advice of any counsel. Therefore, the question of acting on the mistaken advice of any counsel and of the delay being caused on that account has not been pleaded therein. On the other hand, the plea appears to be that in fact there was no delay in filing the appeal. This is evident from the perusal of paras. 2, 3 and 4 of the said application which are quoted hereunder for facility of reference:‑ "(2) That the evidence of the petitioner was recorded when the respon dent applied to the Court for abatement of the suit as the Service Tribunal was established and the jurisdiction of the Court was barred. (3) That the Court decided on 5‑3‑1975 that the appeal in the present case lies to the Service Tribunal. (4) That due to the order of the Court, an appeal has been preferred before the Service Tribunal today." Thereafter, almost as an afterthought, it was submitted in the last paragraph No. 6 of the said application as under:‑‑ "

6. That in case it is thought that the appeal is time barred, it is requested that the time limit may please be extended as due to the new introduction of Services Tribunal Act, there has been some misunderstanding about the time limit." (Underlining* is our.) On the other hand, the law had already been clarified in the case of Muhammad Aslam Bajwa v. Federation of Pakistan (P L D 1974 Lah. 545), that the cumulative effect of provisions of Act LXX of 1973, and Article 212 of the Constitution was, that the petitions pending in the High Court pertaining to terms and conditions of service or concerning disciplinary action abated forthwith with respect to matters which fell within the jurisdiction of the Tribunal. This Court has also explained the import of the relevant provisions in the case of Sh. Masud Ahmad v. Pakistan (P L D 1976 S C 195), in the following words:‑ "Under the substantive part of section 6 the suit abated "forthwith" on the commencement of the Services Tribunals Ordinance, 1973. Therefore, there is no room for the argument that unless the Civil Court had declared the suit to have been so abated, the 90 days limitation for the filing of appeal before the Tribunal would not commence. Indeed, the language of the statute is pre‑emptory and the proceedings is the suit abated ipso facto by operation of law and, therefore, no formal order of the Court was necessary to terminate the proceedings before it." No doubt, this judgment was delivered after the appeal under consideration was filed in the Services Tribunal but the above observations merely declare the law and simply reiterate the legal position as enunciated in the Lahore Case decided in 1974, and referred to above. In any case as the legal position was pointed out by the respondents in the instant case and notwithstanding the same, the appellant persisted in following the erroneous course of insisting to the secute his suit and further he has not taken the plea before the Services Tribunal that this wrong course was persisted in on account of some mistake an advice by his counsel no advantage can be taken by him of this Court's dicta in the case of Nazar Muhammad v. Mst. Shahzada Begum. This appeal must, therefore, fail and is dismissed hereby. However, the parties are left to bear their own costs. Appeal dismissed.